FAMILY LAW II CLASS NOTES

BISHOP STUART UNIVERSITY

BACHELOR OFLAWS
SECOND YEAR, SECOND SEMESTER
FAMILY LAW IICLASS NOTES
LECTURER: CHARLOTTE KABASEKE

THE LAW RELATING TO CHILDREN

The Law relating to children is provided for in the Children Act, Cap 59 as amended by The
Children (Amendment), 2016. (Look at the Short and Long Titles to the Children Act).

Read: - Article 31 (4) and Article 34 of the Constitution of the Republic of Uganda.
- UN Convention on the Rights of the child

The topic on children raises two questions.

1. Who is a child?
2. What are the rights of an unborn child?

What are the rights of an unborn child?

Article 22(2) of the Constitution of Uganda provides that no person has the right to terminate
the life of an unborn child except as may be authorized by law. No law has been proved in
Uganda to authorize abortion, except in special circumstances like medical reasons.
Look at Section 212 of the Penal Code Act

The Bible has references to children whose future was pre-determined before birth e.g Isaac,
Jacob, and Esau, John the Baptist, Jesus Christ.
He Bible refers to children as a blessing eg Psalms. 127:3- 5 (Sons are a heritage from the Lord,
children are a reward from him. Like arrows in the hands of a warriors are sons born in one’s
youth. Blessed is the man whose quiver is full of them. They won’t be put to shame when they
contend with their enemies of the gate.
Prov. 17: 6 (Children’s children are a crown to the aged and parents are the pride of their
children.
In MCKAY AND ANOR V ESSEX AREA AUTHORITY AND ANOR [1982] 2 ALLER 771,
a pregnant woman contracted rubella [German measles] in the early months of her pregnancy.
Her doctor took blood samples from her which were tested bythe local area authority but the
infection was not diagnosed and the child was born severely disabled. In an action for
negligence by the mother and child against the doctor and the health authority, it was alleged
on behalf of the child that the doctor was negligent in failing to treat the infection and in not
advising the mother of the desirability of an abortion. The child claimed damage for being
allowed to enter life damaged.
Held: the duty owed to an unborn child was a duty not to injure it and on the facts, the child
had not been injured by either the doctor or the health authoritybut by the infection contracted
by the mother without any fault on their part.
If the child’s action was to succeed , it could only do so on the basis of the right not to be born
deformed or disabled which in the case of a child deformed or disabled before birth by nature
or disease meant a right to be aborted.
1 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

Email: charlottekabaseke@[Link] Tel: +256 782 181 586

 FAMILY LAW II CLASS NOTES

Although the doctor owed a duty to the mother to advise her on the infection and their
consequences and desirability of an abortion in those circumstances, it didn’t follow that the
doctor was under any obligation to the foetus to terminate its life or that the foetus had a right
to die. Such a claim for wrongful life would be contrary to public policy as to sanctity of life.
Furthermore, it would be impossible for the court to evaluate damages for value of existence
in a disabled state. Accordingly, the claim showed no reasonable cause of action and was
dismissed.
At page 781 Lord Stephenson said,“the only duty of care which Courts of Law can
recognize and enforce are duties owed to those who can be compensated for loss by
those who hold the duties. In most cases, including cases of personal injury by money
damages which will as far as possible put the injured party in the condition in which he
or she was before being injured. The only way in which a child injured in the womb
can be compensated in damage is by measuring what it has lost, which is the difference
between the value of its life as a whole and health normal child and the value of its life
as an injured child. But to make those who haven’t injured the child to pay for that
difference is to treat them as if they injured the child…”

Udale V Bloomsbury Area Health Authority (1983) 2 All ER [Link] plaintiff a mother of 4
children underwent a sterilization operation which was carried out by doctors employed by the
defendant health authority. The operation was not successful and she subsequently became
pregnant. She gave birth to a normal healthy baby but later brought this suit in an action for
negligence, against the authority claiming damages for:-
i) Pain and discomfort including anxiety and distress caused by the unsuccessful operation.
ii) Loss of earnings during pregnancy birth and early rearing of the child
iii) Cost of enlarging family home to accommodate a new baby
iv) Cost of the child’s up bringing until the age of 16.
The healthy authority admitted liability but disputed amount of damages.
Held:
i) It was against public policy to award damages to a mother whose child had been conceived
after the mother had undergone a negligently performed sterilization operation.
ii) It was highly un desirable that the child should learn that the court had declared that his life
or birth was a mistake, unwanted and regretted.
iii) Medical practitioners would be placed on pressure to authorize or carry out abortions.
iv) The birth of a normal and healthy child was a benefit, not a detriment.
The lady was only awarded damages for loss of income, pain, suffering inconvenience, anxiety
and disruption of the family’s finances caused by the unexpected pregnancy.

Children: Who is a child?

Different laws have different definitions of who a child is. Article 257 of the Constitution of
the Republic of Uganda, 1995 defines a child as a person under the age of 18 years.

Section 2 of the Children Act (Cap 59)providesdefines a child to mean a person below 18 years
of [Link] Section 88 of provides that the minimum age of criminal responsibility is
12years. For purposes of marriage, a person who is 18 years and above has a right to marry and
found a family.(Art 31(1)(a)). For voting purposes, the age limit is 18 years and above.

2 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

Email: charlottekabaseke@[Link] Tel: +256 782 181 586

 FAMILY LAW II CLASS NOTES

Read: -the provision of the Contract Act on a child’s capacity to Contract

- The Provision of the Employment Act on employment of children.
- Article 34 of the Constitution on employment of children

Under the Civil Procedure Rules, a minor can sue through a next friend who is an adult but the
authority of the next friend must be obtained through writing.

Order 32 rule 1 of the Civil Procedure Rules, S.I 71-1 provides that every suit by a minor shall
be instituted in his or her name by a person who is in the suit shall be called the next friend of
the minor. Before the name of any person shall be used in any action as a next friend of any
infant where the suit is instituted by an advocate, that person shall sign a written authority to
the advocate for that purpose and the authority shall be presented together with the plaint and
shall be filed on the record.

Order 33 rule 2, Civil Procedure Rules states that where a suit is instituted by or on behalf of a
minor without a next friend, the defendant may apply to have the plaint taken off the file with
costs to be paid by the advocate or other person by whom it was presented.

Where the defendant is a minor, the court on being satisfied by the fact of his or her minority
shall appoint a proper person to be guardian adlitem of the minor. Order 33 rule 3(i). An order
for the appointment of a guardian ad litem may be obtained upon application in the name and
on behalf of the minor or by the Plaintiff. Such application shall be supported by affidavit
verifying the fact that the proposed guardian has no interest in the matters in controversy in the
suit adverse to that of the minor and that he or she is a fit person to be so appointed.
So children can sue and they can be sued.

General parental rightsand duties

A parent has a duty to control the behaviour of his or her child. Good conduct is learnt from
the family. Parents also provide custody, food, clothing, general maintenance to the child. In
return, the parent enjoys the privilege of the child’s labour. If the services of the child are
deferred with, a parent is entitled to damages eg in Sulman Muwanga V Jiwan [1964] EA 171,
a child of 13 years was knocked down and killed by the defendant’s vehicle. A suit for damages
for loss of services was filed by the girl’s uncle who was also her guardian as her father had
died earlier. This was an action under the Law Reform (miscellaneous provision) Act cap 74
then.
Sir Udo Udoma CJ said, “Court should take judicial notice of the fact that African
Children are usually educated by their parents and guardians at considerable expense-
involving no more than great personal sacrifice. Such children are naturally in turn
expected to assist in domestic work while at school and after school, on gaining
employment, to make contributions towards maintenance of the family, the term family
being used here not in the European sense but in the African sense which
anthropologists usually refer to as the kindred or extended family.”
Accordingly, the mother and girl’s grandparents were entitled to damages for loss of services.

Read: Nyanze VSecuricor [1978] HCB 92

3 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

Email: charlottekabaseke@[Link] Tel: +256 782 181 586

 FAMILY LAW II CLASS NOTES

Section4, 5, and 6. Children Act Cap 59, as amended on the duty of parents to maintain
children.
Article 31 (4) of the Constitution

Children at School.
Parents have a right and duty to train their children. These rights and duties are delegated to
teachers. The duty of a school teacher has been said to be that of taking such care of his or her
pupils as a careful parent would take care of his/her children. Similarly he or she is under a
duty to exercise supervision over them while they are on the school premises.
The extent of supervision quite clearly depends upon the age of the pupils and what they are
doing at the material time. But it is not the law that a school master must keep his pupils
under supervision during every moment of their school lives. It is trite to say, that supervision
involves some general protection of the pupils against dangers that are known or should be
apprehended.
The test in the words of the Lord Wright, MR in Wray V Essex County Council [1936] 3 All
ER 97is;
“But in every case, when you consider the standard by which the duty is to be tested
and according to which it has to be ascertained whether there has been any breach of
duty, it is necessary to consider whether there is something which the school master
ought to have anticipated, something reasonable foreseeable and something, therefore,
which, because it is foreseeable the master ought to have guarded against.”

In Mustafa Lule V West Buganda District Admin [1973] ULR 126, the Plaintiff, a young boy
of about 15 years sued by his mother as next friend. The plaintiff was sent outside his class
room for disobedience. While there, another student punched him several times and as a result,
his spleen had to be removed. The defendant filed a defense denying liability and blaming the
Plaintiff wholly or in part in provoking a fight with the other boy- but did not appear on the
date of the hearing.
It was held that the fact that the school master had allowed both boys to be outside the
classroom without supervision was not sufficient evidence of negligence. That the school
teacher could not possibly have foreseen that the meeting of the two outside the classroom
would inevitably result in such a violence manner. So the case was dismissed.

In Ayat Bethy V Acholi District Admin HCS No. 396 of 1971, some girls, including the
Plaintiff were instructed to take part in an exercise involving throwing of a rubber ring, one to
the other .
The ring which was provided for this purpose was broken so the head girl repaired it with a
safety pin. During the course of the exercise, the safety pin came apart and pierced and damaged
Bethy’s eye. The school authority was held liable in failing in its duty to provide safe equipment
for use by its pupils when taking apart in organized physical exercises and for complete lack
of supervision and care of the pupils by the teacher.

Similarly in Kasifa Nakintu Nishyiembere V Mubende District Admin [1972] ULR 90

The school authority was held liable when the Plaintiff aged 6½ fell into an unprotected pot
of hot porridge with the teacher standing some 50feet away. Justice Mead held that a child
while at school was under the care of the school staff. The school authorities had a duty to

4 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

Email: charlottekabaseke@[Link] Tel: +256 782 181 586

 FAMILY LAW II CLASS NOTES

exercise the case of a reasonable and prudent parent. Alarge pot of porridge had been placed
on the ground in front of the children. No attempt was made to prevent children knocking
against the pot or falling into it. The pot was left unattended and there was no protective fencing
or enclosure around the pot. The Plaintiff was pushed and she fell in the pot. A reasonable and
prudent parent would have contemplated the occurrence of such an incidence or accident. He
defendants were therefore liable in negligence.
In both these cases, he school authorities were duty bound to guard against the apparent
possible danger emerging.

DETERMINATION OF PARENTAGE.
It is a Common Law presumption that every child born in Wedlock is a child of that marriage.
Read: H v H.
The Law recognizes the child’s biological father as his legal father. If the parents are married,
any child born to the wife is presumed to be he child of the couple. At common law, the
presumption could only be rebutted where evidence put the matter beyond reasonable doubt,
but now the matter is determined on the Balance of Probabilities.

In S VMC, WV Official Solicitor [1972] AC 2 at Pg 41, Lord Reid said;

“Blood tests have been used extensively for many years in many countries and it is now
generally recognized that if a test is properly carried out by a competent serologist, its
results are fully reliable. InS’s case [1970] IWLR 672 a well-known serologist said, “if
blood from the mother, her child and the husband is examined , here is on average, a
70% chance of showing that he is not the father if in fact he’s not the father.”

Such tests will indicate how wide the field is from which to choose the putative father. The
width of the field depends on what happened to be the groups of the mother and the child. The
tests will show what blood group genes the child must have inherited from its father and the
proposition of men having necessary combination of blood group genes to give can be
calculated.
A child’s long term interests are better served by knowing the truth about the child’s parentage.
Hence, where there is doubt concerning parentage of a child, medical tests can be carried out.

Proof of Parentage.
Where the parentage of a child is doubted, there are various ways of determining the parentage
of the child.
The Burden to Proof Parentage lies on the part alleging it (Section 70 of the Children Act).
In Moore V Hewitt [1947] KB 831, it was laid down that where in proceedings of his nature
there is evidence that over a long period, including the time of conception the putative father
has chosen to associate with the complainant on terms of close affection and there is no close
evidence that she was associating with other men, material exists which the court is entitled to
treat as corroboration of the complainant’s evidence in some material particular , as required
by the relevant law.

In Simpson V Collinson [1964] ALLER 262

It was held that an admission by a man against whom an affiliation order is sought that he had
sexual intercourse with the applicant worker within 2-4 months of the conception of her child

5 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

Email: charlottekabaseke@[Link] Tel: +256 782 181 586

 FAMILY LAW II CLASS NOTES

is capable in law of being corroboration in some material particular that he also had intercourse
( which he denied ) at the time of conception.

The above cases were cited in the East African case of C.T V M.W [1969] EA 37. The
applicant, who had been adjudged to be the father of the respondent’s child appealed
contending that there was no evidence corroborating that of the respondent. He had admitted
having sexual intercourse with the respondent, 4 months before conception to the child. It was
held that here was ample evidence corroborating evidence of the respondent.
The fact of previous intercourse being material rather than its interval from the date of
conception.
Read: Mbwambo V Aaron [1966] EA 241-There has to be a probability that the man is the
father of the child. Evidence of sexual intercourse is a material fact which can corroborate the
applicant’s evidence.

Blood Testing
Blood tests have also been used to prove parentage(Section 69 (4)) of the Children Act. In H
V H [1966] I ALL ER 356, the husband petitioned for divorce of his wife on the ground of
adultery. The husband denied paternity of Clive aged 9years, the youngest of the children born
to the wife. He denied that he had accepted Clive as a member of the family and Clive, through
the official receiver as his guardian adlitem intervened in the suit. It was held by Justice Ormrod
that basing on the evidence of the blood groups, it was abundantly plain that this child Clive
couldn’t be the son of the husband. Both the husband and wife were blood group O and the
child was blood group A2 which made it perfectly plain that the husband couldn’t be the father
of that child because the child had to get the A2 group from his father. So there was adultery
proved with a man unknown and the court issued a decree nisi accordingly.
The court further held that there is a presumption under the law that a child born in wedlock is
a child of the marriage. But Ormrod J further said,
“it is possible to enable the courts to do justice on the footing of fact and not to do
injustice on the basis of presumption … it is a sad thing to bustardise a child, but there
are graver wrongs…because there is nothing more shocking than that injustice should
be done on the basis of a legal presumption when justice can be done on the basis of
fact. So, a child’s blood should easily be supplied for purposes of blood grouping.
The court further held that courts should be very cautious when asked to hold that a child has
been accepted as a child of the family without evidence of some explicit arrangement, between
the spouses. Proof of acceptance may be given by evidence of conduct but it must be clear and
unequivocal. To hold otherwise would encourage explicit rejection of such children and thus
to promote a deal of unkindness to those unhappy children.

In R V R [1968] P 414 Lord Park said, the child of one party to the marriage cannot beheld to
have been accepted as one of the family by the other party unless it is shown by evidence first
that the other party consented either expressly or impliedly to receive the child as one of the
family, and secondly, that the consent was given with knowledge of the material facts. Whether
here has been an acceptance of the child is in each case, a question of fact.”

In R V R, the husband refused to receive the child as soon as he discovered documents showing
that the co-respondent was the father of the wife’s daughter.

6 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

Email: charlottekabaseke@[Link] Tel: +256 782 181 586

 FAMILY LAW II CLASS NOTES

In W V W [1970] 1 All ER 1157, the Court of Appeal (With Lord Denning dissenting) decided
against a blood test which might indicate to a child of 2 years born of a married woman who
while cohabiting with her husband had had intercourse with a West Indian, “that he was
illegitimate and that his mother was lying when she said that her husband was the father.” Lord
Denning however was strongly of the opinion that it was in the best interest of the child as well
as of the other parties to decide the case on the best evidence available, including a blood test.
The child would want to know who his father really was and it was best for him as well as for
the adult parties for the truth to come out.

DNA Testing.
This can establish parentage with virtual certainty. DNA profiling compares the pattern
produced by sequences of nucleotide bases known as minisatellites which can be obtained by
subjecting body samples; e.g. blood, semen, saliva hair looks etc. to series of complex
processes which enable the pattern to be read like a bar code.
A child obtains half of its genetic material from each parent but is a unique individual.
Thus a child’s DNA will include patterns identical to these found in each parents DNA.
DNA profiling requires samples from the child and both alleged parents where parentage is
disputed. However sufficient information might be available from the testing of one parent and
two siblings so long as the parentage of the 2nd child wasn’t disputed. Although the validity of
the test is not in doubt, its accuracy depends on the skill of the tester handling the samples and
reading the results.
The cost of this taste is much higher than for more traditional blood test and this may determine
the choice of test for some litigants.
DNA means Deoxyribonucleic Acid, a self-replicating material which is present in nearly all
living organisms especially as a constituent of chromosome and is a carrier of genetic
information.

Application for declaration of parentage in Uganda

The law on declaration of parentage used to be the Affiliation Act, Cap 217 which was repealed
by the Children Statute of 1996 and now, the Children Act Cap 59. Section 67 provides that a
person who is;
a) The mother of a child
b) The father of a child
c) The guardian of a child
d) The child himself/herself through a next of friend may make an application for a declaration
of parentage by complaint on oath to a Family and Children Court having jurisdiction in the
place where the applicant resides for summons to be served on
i) The man alleged to be the child’s father or
ii) The woman alleged to be the child’s mother

An application for declaration of parentage may be made during pregnancy, at any time before
the child attains 18years of age or within 3 years after the death of the alleged father or mother.
The Family and Children Court may give leave for filing an application after 3 years where it
is for the welfare of the child to hear the application. The application may be made whether the

7 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

Email: charlottekabaseke@[Link] Tel: +256 782 181 586

 FAMILY LAW II CLASS NOTES

child or the alleged mother /father is in or outside Uganda. See Section 68 of the Children Act,
Cap 59.

The court summons the parent alleged to be the father or mother of the child. In proceedings
for the declaration of parentage, the court may make an order requiring any person to give any
evidence which may be material to the question including a blood sample for purposes of blood
test. Section. 69 (5) of the Children Act provides that any person sought to be tested must be
made a party to the proceedings.

For Procedure the procedure of Declaration of Parentage, Read Sections 67 to 70 of the

Children Act, Cap 59.
The Burden to prove parentage lies on the person alleging it (Section 70).

Effects of the parentage order

A declaration of parentage by the court has an effect establishing a blood relationship of father
and child or mother and child. The child is placed in the same legal position as a child actually
born in lawful wedlock towards the father /mother
See: Section 72 of the Children Act

The declaration of parentage doesn’t by itself confine rights of custody of the child upon the
declared father or mother. However the court may, in the same proceedings for declaration of
parentage, grant custody of the child to an applicant on such conditions as it may deem fit. The
court primarily considers the welfare of a child in granting or revoking a custody order.
The Children Act also provides for appeal to the Chief Magistrate’s Court where a party is
dissatisfied with the Courts order of the application for declaration of parentage and the order
may confirmed or be revoked for sufficient cause (Section 74 and 75 of the Children Act).

In declaration of parentage, the Court will consider a number of factors. There mere fact that
the child resembles or does not resemble the presumed parent is not conclusive evidence of
parentage or otherwise.

In the case of Mpirirwe V Nsabimana (1994) 4 KALR 88, It was held that the evidence in
similarity of physical features between a child and the alleged parent is admissible to prove
paternity even if the evidence is not conclusive. The failure by the defendant to adduce evidence
of the genetical biological physical features similar to those of the deceased made Court fail to
presume that the alleged twins were fathered by the deceased.

However, Court may consider past conduct to declare parenthood, e.g. in the case of Mwambo
V Wandoa Aaron [1966] EALR 241, the fact that the respondent appeared to have loose morals
was reason for the Magistrate to treat her evidence with the greatest caution but it could not
make good the absence of evidence to support the allegation that the respondent was
associating with other men.
The principle in this case is that corroborative evidence need do no more than show the
probability that the mother’s evidence implicating the man is true; it must point to the man as
the probable father but it is not correct to say that it must be incapable of any other
interpretation.

8 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

Email: charlottekabaseke@[Link] Tel: +256 782 181 586

 FAMILY LAW II CLASS NOTES

Refer to Section 69 (3) of the Children Act.

In Ettenfield V Ettenfield [1940] 1 All ER 293, the issue about whether or not the
husband/alleged father could in law adduce evidence of non-access. It is held that where the
only evidence is the birth of a child to the wife and the parties have voluntarily separated, the
husband cannot give evidence of non-access but he can prove that fact by any means open to
him other than his own evidence. The presumption is that the child is legitimate. If the husband
needs evidence to rebut that presumption, the wife can call but cannot herself give evidence in
support of the child’s legitimacy.
Read: Re L (1968) 1 All ER 20
F V F [1968] 1 All ER 242
In R V Baskerville [1916 – 17] All ER 38; [1916] 2 KB 658, it was stated, “what is required is
some additional evidence rendering it probable that the story of the accomplice is true and that
it is reasonably safe to act upon it. It would be in a high degree dangerous to attempt to
formulate the kind of evidence which would be regarded as corroboration except to say that
corroboration evidence is evidence which shows or attempts to show that the story of the
accomplice is true.

Revocation of an order for declaration of a parentage. Section 75 of the Children Act

CUSTODY OF CHILDREN
The general rule is that parents have a right to live with their children (Article 31 (4 & 5) and
Article 34 (1) of the Constitution of the Republic of Uganda). Circumstances arise when this
is not possible, e.g where parents are not married or they are divorced or where you have sick
parents that are unable to live with the child, among other examples.

Custody is the legal process where Court determines who is entitled to live with and make
decisions concerning the child.

In particular relation to custody, the guiding principle is the welfare of the child (the best
interest of the child). See: Section 3 and the First schedule to the Children Act, Cap 59.
In Nakagwa V Kiggundu (1978) HCB 310,In this case, the Court attempted to define the
welfare of a child and the judge in this case relied on the English case of Lough V Ward (1945)2
All ER 338, where the Judge in this case held that while the term welfare is incapable of
definition in relation to custody of children, it means, “ all circumstances affecting the well-
being and upbringing of the child have to be taken into account and the Court has to do what a
wise parent acting in the interest of the child ought to do. There are issues that arise where court
has to determine custody of the child or where the welfare principle has been challenged.
1. The first issue relates to citizenship.
In Musinga V Musinga (1993), Court stated that citizenship concerns should not override the
welfare principle. The Court further considered the child’s nationality and said that a non-
citizen mother could still have custody as long as she was in Uganda.
2. Better financial means
The capacity of the parent or guardian will only be considered where relevant. 1 st Schedule to
the Act, Rule 3 (f). In Re Hoffman V Hoffman (1972), Court ruled that the father’s superior

9 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

Email: charlottekabaseke@[Link] Tel: +256 782 181 586

 FAMILY LAW II CLASS NOTES

financial position was irrelevant to the issue of custody since it only went to show that he could
support the child when it was living with its mother.
Read: Nyakairu V Nyakairu
3. Children of Tender Years
Prior to coming into force of the Children Act, there was a preference of Courts that the mother
should have custody of a child of tender years. This position was emphasized in Kayongo V
Sekizibu C.A no.18 of 1978.
In Karanu V Karanu [1975] EALR 18, the dispute was over a girl and boy aged 5 and 6
respectively. They were sickly and needed attention. The courts were of the view that the
younger the child, the greater the need for constant attention and since mothers had been
playing this role better, then preference favoured them.
Section 3 (d) of the Children Act Cap 59 as amended provides that the age of the children
should be put in to consideration while determining the issues relating to children.
4. The health of the parent
Kalisa V Kalisa (1974) HCB 108, In this case, the mother was granted custody but entrusted
the child to the care of her mother and went to Nairobi to look for work. The Chief Justice held
that she had displayed lack of care and concern for the child by going to Nairobi and leaving
the children with their grandmother. Her application to shift the children to Kenya was
therefore rejected.
Williamson V Williamson Divorce Cause no.1 of 1992. The mother was mentally ill so the
custody order was made against her in favour of the father of the children.

In cases of custody of an infant, it is settled law that the welfare of such a child should be
paramount. In Samwiri Masa V Rose Achen [1978] HCB 297, it was held by Ntabgoba J that,
“It is trite law that where the issue of custody of a child is between its father and mother,
and taking into account the paramount interest of the child, custody of such child,
especially when it is of tender years must be granted to the mother. Where however the
issue as to custody is between the father of the child and a 3rd person and taking into
account the paramount interest of the child such custody must be granted to the father.”

In Re M [1967] 3 ALL ER 1071 at pg 1074

The court gave factors to be considered in determining to whom custody of a child should be
granted as being the welfare of a child, personality and character of claimants, medical
evidence, sex and age of the child, racial and other background, education, accommodation
and other material advantages.

There are cases where Customary Law rules have also been advanced in relation to custody.
Read: Nakagwa V Dominique Kiggundu [1978] HCB 310,
Wambwa V Okumu [1970] EA 578, where there was a dispute between the alleged/putative
father under Customary Law, and the mother. The preference was given to the mother for
custody of a 4 year old in the absence of exceptional circumstances.
Custody of an illegitimate 4 year old child was granted to its putative father under the principles
of the relevant customary law. Court held that the customarily law did not take into account
the welfare of the child. That in the absence of exceptional circumstances, a 4 year old girl
should be looked after by its mother. The customary law was therefore held to be inconsistent

10 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

with sec 17 of the Guardianship of Infants Act. Thus under Sec 3(2) of the Judicature Act 1967,
Court couldn’t be guided by it.

In Mohammed Hassan V Nana Binti Mzee [1944] 11 EACA 4, it was held that in Kenya , the
court should have regard to customs of the race and community to which the child belonged ,
Sir Sherigan , CJ at page 6 said ,
“In considering the all-important questions of the welfare of the child, the customs and
habits of the community to which the child belongs must be given serious
consideration.”

Read: Nakagwa v Dominique Kigundu[1978] HCB 310

In Fatoom Bint Abdul M V Nabiha Bint Ahmed Mohamed Ibrahim [1957] EA 673, Campbell
CJ held that the welfare of a child can’t be and isn’t intended to be exclusively confined to the
matter of material welfare as opposed to psychological welfare.

Nyakairu V Nyakairu 1979 HCB 261. In this case there was disputed custody over a child of a
husband and a wife recently divorced. The trial court had found that the husband was guilty of
cruelty and adultery. Court granted custody of the 2 children to the wife. The husband appealed
to the High Court against the custody order.
The High Court found that the wife was equally guilty of adultery. The court had to apply the
underlying principle in all custody cases which was that the welfare of the children was of
paramount importance.
It also considered some other circumstances eg
i) Who of the parents was responsible for the marriage breakup
ii) Who of the parents was more financial equipped to look after the children
iii) Which of the spouses would provide a more comfortable home
The appeal was allowed and the respondent was allowed access to children at all reasonable
times.

In R V Gyngle [1893] 2 QB 232 at 248,Lord Kith Said,

“The term welfare in this connection must be read in its largest possible sense, ie ,as
meaning that every circumstance must be taken into consideration and the court must
do what under the circumstances a wise parent acting on the true interest of the child
ought to to do
At pg 21, Lord Esher. MR said,
“The court is placed in position by reason of a prerogative ofthe crown to act as supreme parent
of children and must exercise that jurisdiction in a manner in which a wise affectionate and
careful parent would act for the welfare of the child… the court must act judicially in the
exercise of its power.”

In custody proceedings, the character of a parent is extremely relevant. Refer to Hofman V

Hofman [1972] EA 100, where a seven year old boy was asked in court, which of the parents
he wanted to stay with.

11 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

A person having custody of a child has a duty to maintain it and his confers upon a child a right
to education,shelter medical attention, adequate diet, clothing etc see Sec 5 of the Children Act,
Article 34 of the Constitution,
See 5(2) states that every person having custody of a child shall protect the child from
discrimination, abuse, violence and neglect.
Sec. 6 states that every parent or guardian shall have parental responsibility for his or her child.
Sec 6(2) states that where the natural parents of a child are deceased, parental responsibility
may be passed on to the relatives of either parent or by way of a care order or warden of an
appointed home or to a foster parent.

Read: Re GM(an infant) [1957] EA 714, It was held that under English law the welfare of a
child is paramount as between parents interse or between strangers interse. However as
between parents and stranger the parent has a right which has been the subject of judicial
definition. More than once. The applicant (child’s uncle) was a blood relation to the child and
the respondent, a complete stranger Nandi woman. The child was a Kikuyu. Thus it was held
that under English law this was a case where the applicant would be held to have custody of a
child as against all strangers. Thus, the applicant was granted custody of a child.
Read: Sec 73 of the children act Cap 59

In Kararu V Njeri, the Kikuyu custom was looked at in determining custody.

GM ( An Infant), there was a dispute between a well to do non-relative and the child’s paternal
uncle who claimed custody by virtue of custom. Court upheld this, arguing that the virtue of
the child being under the custody of a non-relative did not give him a better right than the
relative.
Read: Section 87 of the Children Act, on unfit parents.

When can an application for custody be made?

-This can be lodged independently.
-It can be made concurrently with an application for declaration of parentage
-It can also be made concurrently with an application for maintenance
-It can also be made under Section 29 of the Divorce Act, during Divorce proceedings

Note: A custody order can be revoked under Section 73 (2) and (3)where court considers
primarily the welfare of the child when granting or revoking custody.

Rights of the Non-Custodial Parent

-Right to participate in the child’s upbringing ( Section 86)
-Right to visit or have access to the child ( Section 84 (1) & (2))
This right should be exercised reasonably.
Read: Kayongo V Sekizibu
In Nakaggwa V Kiggundu, it was stated that a rigid timetable might not be possible. This right
may only be upheld if it does not disrupt the welfare of the child.

It is an offence under the Act to remove the child from lawful custody. Section 73 (4)

Application for custody is by petition under Rule 19 of the Family and Children Court rules.

12 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

MAINTENANCE OF CHILDREN
Maintenance of children is provided for under Sections 76 to 84 of the Children Act. The
Constitution of the Republic of Uganda, in Article 31 (4) and Article 34 also provides for
maintenance.

Sections 5 and 6 of the Children Act also imposes a duty on guardians, parents and or any other
person having custody of a child to maintain that child.

This duty continues on the part of the parents even after divorce, separation or condition of
nullity of marriage (Section 84 (1) of Cap 59).

Application for maintenance

Under Section 76 provides that both the mother and the father or the guardian of the child can
apply for a maintenance order against the other parent. The applicant must however be having
custody of the child.
The child can also apply for maintenance under Section 76 (2) of the Act. The child can do this
through a next friend.
These children are those in respect of whom the declaration of parentage has been made or
whose parentage is not in dispute.
For the other children where parentage is not disputed, it is the mother, the father or guardian
who can make the application.
The Act stipulates that a guardian is one who has parental responsibility over the child.

Procedure for application for maintenance

According to Section 76 (5), the application is made by complaint on oath.
The Family and Children Court Rules show the format of the application. The rules provide
that an affidavit has to be attached explaining how the parent has refused to maintain the child.
Refer to Rules 4, 19 and 21 of the Family and Children Court rules.

When can an application be made?

Section 76 (3 & 4) provides that it can be made anytime during pregnancy and before the child
attains 18 years.
However, Section 76 (2) provides that an application can be made during a subsisting marriage
or during proceedings for divorce, separation or nullity or during proceedings for declaration
of parentage or after the order has been made.

Maintenance under the Act, particularly under Section 76 (8) includes feeding, clothing,
education and general welfare of a child. It is important to note that in Section 6, a child has
those rights.

What kind of maintenance order can Court make?

Section 76 (7) of the Children Act, Cap. 59
Once Court is satisfied and has had evidence, it can order a respondent to pay a sum of money
for maintenance of the child. The amounts ordered under the section depends on two things;
i) The circumstances of the case
ii) The means of either the father or the mother

13 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

The sum of money should be paid in monthly installments but Court can also order a lump sum
to be paid in Court.
Court can also order for funeral expenses to be paid if the child died as well as costs incurred
by the applicant.

Enforcement of Orders
Section 76, 77 and 78 of Cap 59.
If no maintenance is paid one month after the order by Court, this can be enforced by issuing
a warrant against the respondent to be produced in Court to show cause why. If the respondent
still refuses to pay, the Court can order his earnings to be attached or the amount owing can be
recovered by distress and sell or redistribution of the property.

However, if the respondent gives sufficient security undertaking to comply with the order, then
his property or earnings may be excused.

A maintenance order can be enforced even after the death of the child to recover prior expenses
(Section 78 (4)).
Under Section 78 (3), it can be enforced against the estate of the deceased parent

Misapplication of Maintenance Money

This is an offence under Section 81 of Cap 59. It can also be a ground for removal or loss of
custody of the child.
The Act provides for appointment of a custodian under Section 80. This is in instance where
Court find that the applicant is not a fit and proper person to have custody of the child, or where
the applicant is dead, or where the applicant is dead or imprisoned, or mentally disabled.

Variation of Maintenance Orders

Section 78 provides that it can be at the instance of the applicant or the person upon whom the
order was made.

Section 78 (2), Variation can be reduced or increased. The order will be varied if one ceases to
have custody of the child, That is, it will cease to have effect.
Kaliisa V Kaliisa

The order will also cease if the child attains 18 years of age. Section 82.

Section 80 (6 and 7), if one wrongfully removes a child from lawful custody, it is an offence,
but the child can also be recommitted.

ADOPTION OF CHILDREN
Adoption refers to a legal process where a child is brought into a child-parent relationship with
a person or persons who are otherwise not his/her biological /natural parents.

Adoption can also be defined as a process where by the court extinguishes the legal ties between
a child and the natural parents or guardians and creates ties between the child and the adoptors.

14 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

The Law provides a machinery for the legal transfer of a child from one family group to
another, but it differs sharply from Civil Law system which inherited the Roman Law concepts
of adoptio and adrogatio.

In England, adoption is associated with the desire to nurture a child as the natural child of the
adopters. Hence, although adoption has important effects on citizenship, succession and other
legal rights, these rights must be incidental to the factual relationship of dependence between
a parent and a child.

In some systems, adoption may be used primarily to confirm succession rights on the adopted
person. Eg InBedinger V Gaybill’s trustee 302 S.W (2nd ) Pg 594, 1957, CA Kentucky,the man
adopted his wife so that she could succeed to settle properly as his child, an heir at law. This is
particularly law in civil law systems under which certain relatives are entitled to a share of the
deceased property.

Islamic systems do not recognize adoption in the sense of a complete transfer of a child to a
new family but have developed the system of Kafalar to provide substitute care or the children.
Adoption may be seen as providing assistance to children, those who wish to be parents and
even to parents who are unable and unwilling to care for their children.
The fundamental purpose of adoption is as a service for children to provide a permanent home
for a child by transfer to a new adoptive family and the severance of the legal links with the
birth family.

Revocation
At Common Law, adoption orders were irrevocable; the parental responsibility of the adoptive
parents could only be removed by a further adoptive order. The rationale for this position was
that theedifice or purpose of adoption would be greatly shaken if adoption orders would be set
aside. Eg in RE: B ( Adoption: setting aside) [1995] FLR 1, at pg 7, a baby whose mum was
English Roman Catholic and whose father was a Kuwait Muslim was placed by the matron of
a mother and baby home with a Jewish couple who were told that the baby’s father was Jewish.
When they discovered that the boy wasn’t Jewish, they arranged to have him admitted in the
Jewish faith. The boy was brought up as a Jew and later he emigrated to Israel. He was assumed,
because of his appearance to be an Arab and he was forced to leave. He made inquiries about
his origin and wanted to have on an Arab identity and be accepted in Kuwait. His application
and appeal were refused.

However in exceptional cases, an adoption order could be revoked. Eg in RE: M (Minors

Adoption) [1991] FLR 458, a father agreed to a step parent adoption in ignorance of his wife’s
fatal illness. The court was prepared to allow as appeal outside the time limit and return the
children to his care. It was accepted that the father gave his agreement by mistake.

Currently in Uganda, an adoption order can be rescinded under Section S. 46 A of the Children
Act as amended.

ADOPTION IN UGANDA

15 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

Adoption is covered under Part 7 (Section 44-55) of the Children Act, Cap, 59
1. On the question of jurisdiction, both High Court (where the child or applicant is not a
Ugandan citizen) and Chief Magistrate’s (Where both the applicant and child are Ugandan
citizens) Courts have jurisdiction to grant adoption orders and the child in question need not be
a Ugandan (Section 44, Cap, 59)
2. Before a court can grant an application for adoption, the followingprerequisites must be met
by the applicants Sec 45, Cap 59)
a) The applicant, or at least one of them (where there are joint applicants) must have attained
the age of 25 yrs. and should at least be 21yrs older than the child.
b) In case of an application by one spouse, the other spouse must have consented to the adoption
(Section 45 (1) (b)
Court may dispense with this consent if the other spouse cannot be found, or is incapable of
giving consent, or if the spouses are separated and the separation likely to be permanent
(Section 45 (2).
c) A sole male applicant cannot adopt a female child, and vice versa, unless there are special
circumstances that justify, as an exceptional measure, the making of an adoption order. In Re:
Edith Nnassaazi – an infant, Adoption cause IV of 1997 before Justice Mukiibi, the application
for adoption was for sole male applicant in respect of a female child . The applicant was a
German tutor in German. He was also the principle of the home for physical handicapped
children called Light of Jesus for the handicapped, situated at Bulera, Namutamba in Mubende
District.
He started his home in 1993. The infant child aged 11 years was an orphan. She was staying
with the paternal aunt. This child was physically handicapped. She could not stand and during
the time she stayed with the aunt, she used to crawl on the ground. The child had a weak back
and legs.
In April 1993, Kasalina Nabisubi (the aunt) requested the applicant to take the infantchild and
look after her. Since then the infant child has been fostered by the applicant at the home in
Butera. She was now attending primary school at the same place.
The issue was whether there were special circumstances that justified as an exceptional
measure, the making of an adoption order. The Court granted the adoption order, basing on the
following circumstances;
i) The infant child was physically handicapped and needed specialized care. She needed a home
where she could be provided with special treatment to assist her improve her condition. The
applicant had such a home.
ii) The applicant had been a defacto guardian of the infant from April 1993. Kasalina Nabisubi
told the Court that the applicant had lookedafter the child very well giving her medical
treatment clothing,food and education.
iii) Apart from the applicant there was no other person willingly to provide for the special care
and maintenance that the infant child needed.
iv) The applicant had acquired fast experience in lookingafter physically handicapped children,
both at the special home established at Bulera, Namutamba and at his home in Germany.
v) There was an age difference of 44 years between the applicant and the infant.
vi) The applicant was married and led a settled marital existence and his wife consented to the
adoption of the infant child.
So the application was granted.

16 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

d) The application can’t be considered unless the applicant has fostered the child for the period
of not less than 12 months under their supervision of a probation and welfare officer. Sec. 45(4)
children Act.
e) The probation and social welfare officer must submit a report to assist the court in
considering the application and the court may require some other person or the local authority
to make a report in respect of the adoption application ( Sec. 45 (5)). This is a mandatory
requirement.
The contents of the report are outlined in in rule 10 of the Adoption of Children Rules,SI 59-1
The report should indicate whether the adoption is in the best interest of the child; the
relationship the child has had during the foster period with the foster parents, the neighbours
and any other person who has rights to the child as stated above; should also indicate the health
status of the child and that of the foster family, the education performance and schools; where
possible, the wishes of the child, the home where the child is living, the economic status of the
foster family, the character of the foster family, the report should also reflect the involvement
of the secretary to children’s affairs as well as recommendations. It should also show how the
probation and social welfare officer has been involved in the performance of the foster parents
during the foster period. It should also verify whether the claims made by the applicant for
adoption are true.

f) The Court can also request for reports from another person or a local authority for
clarification or more details to be given, this is not mandatory.
The other requirements are indicated in Section 48 of Cap 59 (Read it).
g) Consent of the parents of the child should be sought, if they are known ( Section 47).
Parents can withdraw their consent any time before the order is granted.
h) The consent of the child needs to be sought if the child is above 14 years of it (Section 47
(6)
Court may dispense with the consent of the Parent or Child. Section 47 (2) of the Children Act.

Except for married persons, an adoption order cannot be made in favour of more than one
person. Secondly, if all the above conditions are satisfied, Court can impose terms and
conditions which it deems appropriate under Section 48 (2) e.g, It may order that you are not
to take the child out of the Country for more than a limited time.

Adoption by Non-Ugandan Citizens

A non-citizen may in exceptional circumstances adopt a Ugandan child, as provided for in
Section 46 of Cap, 59, if he or she;
a) Has stayed in Uganda for at least 1 year
b) Has fostered the child for at least 1 year under the supervision of probation and social
welfare officer
c) Doesn’t have a criminal record in any country.
d) Has a recommendation from their own Country’s Probation and Social welfare Officer or
any other authority recommending their suitability to adopt a child
v) Has satisfied court that his or her country of origin will respect and recognize the adoption
order. Sec. 46(1) ChildrenAct.
vi) Similarly, the Probation and Social Welfare Officer and any other persons can be required
to make reports (Section 46 (2)).

17 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

Section 46 A provides for Rescission of an adoption order and the grounds for the same.
The other conditions mentioned above, under Section 45, 46 (3), 47, 48, apply.

Read: Re: P [1977] I All ER 88

O’conner V A and B [1971] 2 AllER 1230

Procedure for Adoption

i)An adoption matter is by petition.
ii) the petition must be verified by affidavit to which must be annexed certificates and other
documents proper for proving the allegations in the petition .
iii) The age of the child must be proved to the satisfaction of the court.
The court in its part must carefully look at the above requirements but must in addition find
that;
i) All necessary consents have been obtained. Sec 47
ii) That the order, if made will be for the welfare of the child.
iii) The applicant has not received or agreed to receive any reward and the guardian or any
other person haven’t been paid by the applicant. Sec 48(1)(d) of the Children Act Cap 59.
Read: Rules3-7, 17 of SI 59-1
Note: Look at the Children Amendment Act for the new provisions on adoption in Uganda
which will take effect after the assent by the president and gazetting.

LEGAL CONSEQUENCES OF ADOPTION/EFFECT OF ADOPTION.

Section 50-55 of the Children Act, Cap 59
1. The effect of an adoption order is to establish the legal relationship of parent and legitimate
child between the adopter and the adopted child.
2. The legal rights and duties flowing from the relationship between the child and his natural
parents or guardians automatically cease and these rights and duties then vest in the adoptive
parent(s) as though a child had been born to him or her or them in lawful wedlock.
3. So far as marriage is concerned, an adopted child and is adoptive parents are deemed to come
within the prohibited degrees of consanguinity so that they may not intermarry.
4. The adopted child acquires the citizenship of the adoptive parents, Art 11(2) of the
Constitution of Uganda.
5. The child also adopts the domicile of its adoptive parents (dependent domicile)
6. An adopted child is entitled to a share in the estate of the adoptive parents on succession or
under the succession law.
Read: Re: Juliet Jane Nakazibwe (1973) I ULR 10, (1973) EA.

GUARDIANSHIP
A guardian is someone who has the charge of custody of a person or thing or a person who has
a custody and education of such persons as are unable to manage their own affairs.
Section 1 (k) of the Children Act defines a guardian.

The disabilities of the minor and his legal incapacity to manage his own affairs render it
necessary that, for the protection of his interest and or the management of his property, he
should have a guardian of his person and property to whom he stands on therelation of ward.
A person may be a guardian of a minor in various ways;

18 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

1. By parental right. A father or mother has, by parental right a guardianship ( of a person of a

minor up to the age of 18 as the minor’s natural guardian in the wider sense of the term. Parents
are regarded at Common Law as the natural guardians of their children. Parents’ rights and
duties arise automatically and natural atthe birth of the child.

2. By parental appointment. Both a father and mother have power to appoint persons to act as
guardians of a minor after their respective death. If the child is then a minor, no special wards
are necessary in making the appointment which may be made by deed or will.

3. By appointment of the Court.

The Court may appoint a person as a guardian where a child has no parent with parental
responsibility for him or her. A guardian ad litem may be appointed by the Court to represent
a child in certain proceedings eg on application for a care order or a supervision order.

A guardian voluntarily places himself/herself in loco parentis to his/her ward and his rights and
duties flow immediately from this act.
A guardian must be distinguished from a foster parent. The latter has defacto control and
custody of a child without being its legal guardian. If a parent is dead or is unfit to exercise
his/her parental rights and duties, it is clearly essential that they should be exercised by
somebody else standing in loco parentis to the child. Under English Law, they will not vest in
a guardian unless the guardian has been appointed in one of the recognized ways indicated
above.
In a large number of cases in Uganda, the appointment of guardians never happens and if both
parents die, a child’s grandparents or other near relatives will assume defacto control of the
child without taking steps to have themselves appointed as legal guardians.

Rights and Duties of Guardians

Once a guardian is lawfully appointed, most of the rights and duties which a parent has with
respect of his or her legitimate children vest in him or her too. As regards a child’s property, a
guardian is a trustee in every respect, with precisely the same powers and duties as the trustees
has over and other trust property. As a trustee, a guardian is bound to account to his / her
beneficiary, the child (or ward) when the guardianship comes to an end.

But, where as a trustee has no personal rights and duties with respect to his beneficiary, these
are today the guardian’s chief responsibility. But there is a similarity between the two offices
ie that of a guardian and that of a trustee.
As in the case of a trustee, no one may be appointed a guardian against his will but once he has
accepted the office, he can’t resign it by his unilateral act.
In Matthew V Brise (1851) 14 Beav 341 at 345, Justice Romilly describes the nature of a
guardian as follows,
“ The relation of guardian and ward is strictly that of trustee and cestui que trust. I look
at it as a peculiar relation of trust ship. A guardian isn’t only a trustee but he is also the
guardian of the person of the infant, with many duties to perform such as to see to his
education and maintenance…of all the property which he gets into his possession in the
character of guardian, he is trustee for the benefits of the infant ward.”

19 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

A person standing in loco parentis to a child may sue for damages for loss of services, provided
that actual services were being rendered to him/her by the child.
Read:Peter V John [1914] 2 KB 781
Akol V Industrial Promotions Ltd [1973] EA
A guardian has to provide maintenance to the child and he/she has the duty to protect the child
– this includes physical and moral protection of the child ie give advice to the children.
Where there is only on guardian, he /she will prime facie have the right to the care and control
of the child.
A guardian is also under a duty to ensure that the child receives an efficient full time education
as a parent would do.

GUARDIANSHIP APPOINTMENT IN UGANDA

Guardianship in Uganda is governed by Part VI A of the Children Act, Cap 59, as amended.
The Act, as amended, restricts legal guardianships to only nationals of Uganda. Section 43 A.
The Act points out the procedure for applying for legal guardianship in Section 43 B.
The Act further introduces the concept of customary guardianship in Section 43 C.

Read: The rest of the provisions on Guardianship, as provided for in the Act. Sections 43 A to
43 L.

20 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

LAW OF SUCCESSION
Law Applicable
Succession Act Cap 162 Laws of Uganda
Administrator Generals Act
Customary Law
Case Law
Common Law

Death and its consequences under African Customary Law

African Customary Law had a way of dealing with death.
1. Announcements
There were messengers employed to take messages of death from one homestead to another
informing the occupants of the death of the person.
2. Through loud wailing
This was done in a certain way so that people would get to know of the death of a person.
3. Some societies had a specific beating of drums which signified death.
4. Sometimes, a rope would be placed across a foot path signifying that a person in that area
has passed away and as such, people should go and check on the bereaved family.
5. The assembly of people in places where someone had died was used to confirm whether the
subject or person had actually died.
The keeping of a dead body for two or more days was also to confirm whether the person was
actually dead; to also ensure that relatives from far and wide would come and attend burial so
as to confirm for themselves that the subject was dead as well as witness for themselves the
dead person’s burial place since traditionally, there were no burial sites or stones.

The clan or society had a role to play in succession and would always endeavor to reach a
compromise if society felt that the will left by the deceased dictated an improper position that
was against the society’s norm or beliefs.
Due regard was given and what a person said before he died in as long as it was okay with
society. If it was not okay, then conflicts would arise. Last funeral rites entailed gathering the
family and other people together at a later date after the person’s death so as to divide his
property accordingly. This was not done immediately after the death because of the immediate
shock which follows death. The time gap was to also allow the clan leaders needed time to
divide the property and to get the people to take care of the family which had been left behind.
The valuable property would go to the male dependents and the non-valuable ones to the female
dependents.
Normally, the children of the deceased would be split up and placed in the custody of the
different relatives whom the clan leaders felt were in a better position to raise the children than
the widowed mother.
A case in point is Kajubi V Kabali (1944) EACA 34
Read: Re Sulemani Serwanga Ssalongo [1972] 1 U.L.R

There are changes that have made an impact on customary practices. Most of these changes
have been brought about by statutory law and the Constitution. They have also been brought
about by Criminal Law which has also impacted on customary practices in the sense that
Criminal Customary Law which was essentially a violation of Human Rights and Principals

21 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

was outlawed/ abolished; the compatible clauses e.g Art. 37 of the Constitution which provides
for culture that is compatible with the Constitution and other Laws; the repugnancy test, that
is, a culture may not be compatible with a Constitution but is not repugnant. We have to look
at the facts and merits of the case (Each case on its own).

The cash economy has also had an effect on Customary Law, such as bride price; foreign
religions where some may not lay so much emphasis and may in fact criticize certain cultural
issues such as the practice of funeral rites. The individualistic philosophy of life which lays
emphasis to the individual and his life contrary to the African traditional system which was
communal, that is, was centered around community need; The Bill of Rights which flows from
the International Bill of Rights and from which we have the African Charter on Human Rights,
which takes precedence? Society rights or rights of an individual? Duties an individual owes
to the community, that is, what comes from his homeland e.g, polygamy as opposed to what
he has picked from western colonialism e.g monogamy.

Because of the above impacts, one cannot say that we have a purely customary practice,
however, the effect of customary law remains strong since many customs were directly made
law by the 1972 amendment to the Succession Act. The Ssekkandi report comments that, two
people who were accustomed to settling issues of Succession through Customary Law, the
effect of the amendment was to change, “not so much of substance as of venue.” The venue
has to a large extent been transferred to the Courts but the substance of Customary Law has
been reserved to a large extent by retaining the main customary practices.

Succession, commonly known as inheritance is a process by which property left by a dead

person is shared out among specified persons according to the wishes of the dead person or
according to the manner laid down in the law. In Uganda, it is dealt with under the Law of
Succession.

THE NATURE OF SUCCESSION

The Law of Succession deals with the devolution and transmission of the estate of the deceased
person. It is a process through which one becomes entitled to the property of the deceased
person by operation of the Law.

Synopsis of the current Law relating to Succession

1. The Constitution of Uganda, 1995
Article 33 (1) states that women are to be accorded full and equal dignity of the person with
the men. Article 31 (2) provides that Parliament shall make Laws for the protection of the rights
of widows and widowers to inherit the property of their deceased spouses. Article 129 (1) (d)
for Quadi Courts as surbodinate Courts to be established by Parliament for marriage, divorce,
inheritance of property and guardianship. These Constitutional provisions give the mandate
that in all matters which are relative to in heritance such as administration and distribution of
property as well as guardianship, the Law must not discriminate between the rights of widows
and widowers; likewise between the rights of male and female issues of a deceased person.
Again, the Law must not distinguish between a male and female testate or intestate.

2. The Succession Act, Cap 162

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The Act provides for both the substance and procedure of dealing with large estates

3. The Administration of Estates (Small Estates) (Special Provisions) Act, Cap, 156
This provides for estates whose value is small. These are supposed to be handled by Magistrate
Courts

4. Administrator General’s Act, Cap 157

This provides for the administration by the Administrator General, of estates of the deceased
person. The death of any person in Uganda leaving substantial property must be reported to the
Administrator General

5. The administration of Estates (Small Estates) ( Special Provisions) (Probate and

Administration) Rules SI No. 156-1
This provides further for the Procedure of Obtaining letters of Administration or grant of
probate

6. Probate (Re-sealing) Act, Cap

The Act provides for resealing in Uganda, of Probate validly obtained in another jurisdiction

7. The Administration of Estates of persons of unsound mind, Cap 155

This Law applies to persons who have been certifies as being of unsound mind. The
certification procedure is provided for in Section 4 of the Mental Treatment Act, Cap 259,
Laws of Uganda.

8. The Public Trustees Act, Cap 161

Provides for the appointment and duties of a Public Trustee

9. The Estate of Missing Persons (Management Act) Cap. 159

This Law was enacted to govern situations where a person disappeared and was never seen
again alive.

10. The Trust Corporations (Probates and Administrations) Act, Cap 163
This is in regards to the grant and Probate of Letters of Administration to trustee Corporations

11. Administration of Estates by Consular Officers Act, Cap 154

This Law is to effect two provisions of certain treaties of Commerce and navigation relating to
administration of estates of deceased nationals of certain foreign states.

NB: Inheritance is guided by various Laws as listed above. The Law regulating inheritance is
thorough and detailed. It establishes certain institutions and offices to apply inheritance Law.
These institutions include; Courts of Judicature, The Administrator General’s Office, The
Registrar General’s Office and Local Councils.
In addition, the powers and functions of the various institutions and offices are defined. The
Law also sets out a procedure to follow in inheritance matters eg. How to obtain letters of
administration. More specifically the Law addresses the following:

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A. Procedural Law
i) Powers and duties of the administrator general
ii) Powers and duties of the administrator/Executor
iii) Jurisdiction of the Courts
iv) Procedure for obtaining letters of administration or grant of probate
v) Intermeddling with an estate

B. Substantive Law
Substantive issues in Succession fall into two broad categories. Testate and Intestate
Succession

Types of Succession
There are basically 3 types of succession
1) Testate succession
2) Intestate succession
3) Partly testate and partly intestate

Read: Part II of the Succession Act on Domicile.

TESTATE SUCCESSION
Testate succession is when a person dies leaving a will or a valid testamentary disposition
What has to be borne in mind with testate succession ?
1. The capacity to make a will, that is, who may make a will?
2. Execution of wills, that is, When is a will valid?
3. What constitutes an estate , that is, what property may a deceased person bequeath or give
away?
4. What matter may a will deal with?
5. Who may be a beneficiary?
6. Who may be appointed to manage the estate ( executor or administrator)?

The essence of testate succession is a valid will.

What is a will?
A will may be defined as a document made in a prescribed manner containing a declaration
by which the person making it expresses his wishes as to the disposition of his property or as
to how other affairs may be taken care of.

A will may also be defined as a declaration in a prescribed form of the intention of the person
making it of the matters which he or she wishes to take effect on or after his death.

These definition indicates the following characteristics of a will.

i) The scope of a will isn’t confined to dispositions of property
ii) A will operates only as a declaration
iii) It usually must be in a prescribed form
iv) It is always revocable ie a person can change it
v) It takes effect on death. A will cannot confer benefits while the testator is still alive

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 FAMILY LAW II CLASS NOTES

vi) It is ambulatory, ie capable of being altered or revised until the testator’s death

A will has no effect until a testator dies. A will does not limit the testator’s right of ownership
and he remains free to sell or make inter vivos (between living persons) gifts or deal in his
property in any way he deems fit. This is the basis characteristic of a will and is expressed by
saying that wall, by its nature is ambulating until the testators death. Thus a will can’t confirm
benefits while he testator is still alive. A will does not limit a testator’s right of ownership and
accordingly the testator remains free to make an inter vivos gift of property during the rest of
his lifetime.
Read: Hebrews 9:16-17 – in the case of a will, it is necessary to prove the death of the one
who made it, because a will is inforce only when somebody has died , it never takes effect
while the one who made it is living.

A codicil is a document which is supplementary to a will and it may contain an alteration to

the will or an explanation of the revocation contained in the will. It may modify or vary a will.
Indeed a professional draft man invariably inserts words describing a document as a will or
codicil at the beginning of the document so as to make the nature of the document clear
immediately. Whatever form it takes, any document can be proved as a will or codicil if;
i) The person executing it intended it to take effect only at his death, and
ii) It was dully executed.
To be dully executed normally a document must have been signed and witnessed in accordance
with the formalities required under the Succession Act.
In Cock v Cooke (1866) MR I P & D 241 at pg 243 Lord Penzance said;
“it is undoubted law that whatever may be a form of a duly executed instrument, if the
person executing it intends that it shall not take effect until/after his death and it is
dependent upon his death for its vigour and effect, if it is testamentary.”
Thus a document duly executed by a person who intended it to take effect only at his death can
be admitted to probate as a will or codicil.
In deciding whether a document can be proved as a will or codicil, the court ascertains the
intention of the person who executed it, both at the language of the document and extrinsic
evidence. If the document appears to be testamentary on the face of it, the rebuttable
presumption arises that the deceased intended it to take effect only at his death.

Definition of some terminologies

An estaterefers to all the deceased’s earthy possessions. In general terms an executor is a
person appointed by the will to administer the estate. If the person appointed is a female, she
is called an executrix.
Where a person dies intestate, ie without leaving a will which disposes of property or he leaves
a will without appointing executors, a person who administers the estate is known as the
administrator. Their functions are the same and their positions similar.
Executors and administrators are known collectively as personal representatives.
A bequest or legacy is a gift by will or a gift of personal property by will; a devise is also a
gift by will and it refers to real property. The word may be construed interchangeably or applied
indifferently to either personal property or real estate if the context of the will shows that such
was the intention of the testator.
There are various types of bequests;

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i. Onerous Bequests
These are provided for under Section 109 and 110 of Cap 162. Such a bequest imposes an
obligation on a legatee who must accept the obligation fully before taking a bequest.
ii. Contingent Bequest
Section 111 and 112. This is a bequest that is contingent upon a particular event which is
specified but the time of occurrence is not specified so the legacy cannot take effect until the
specified event occurs.
iii. Conditional Bequests
Section 113-124. Certain conditions must pre-exist before you can full fill the bequest.
However if the condition imposed is impossible, then the bequest is void as well as if the
condition is contrary to law or morality. There are specific sections that with void bequests,
that is, bequests not recognised under the Law.
Read: Section 54 on effect of gift to attesting witness.
Section 99-105 on void bequests
Section 129 to 153 on specific legacies, demonstrative legacies and ademption of legacies
A legatee is a person to whom a gift is given by will
A testatrix is a female person who disposes of her property, etc, by will
A testator is a male person who disposes off his property by will
A beneficiary is a person or recipient of a share of a will

Types of Wills
There are two basic types of wills
1. Privileged Wills
These are provided for under Sec. 51-52 of Cap 162
They can be made by persons who are 18years and above and are members of the armed forces
employed in an expedition or engaged in actual warfare or by any mariner who is at sea.
A privileged will may be oral or written. An oral privileged will may be made by the testator
declaring his intention before two witnesses who are present at the time. An oral will is nullified
at the expiration of one month after the testator has ceased to be entitled to make a privileged
will, after the end of the expedition or war if you are still alive.

In Banks V Goodfellow [1861-73] All ER ,Justice Copeland C.J stated, “as to the testator’s
capacity, we must in the language of the Law have a sound disposing mind or memory, that is,
he ought to be capable of making his will with an understanding of the nature of the business I
n which he/she is engaged. A recollection of the estate means to dispose of, the persons who
are the objects of his and the manner in which it is to be distributed between them. It is not
necessary that view his will with the eye of a lawyer and to comprehend its provisions in their
legal form. It is sufficient if he has such a mind and memory as will enable him to understand
the elements of which it is composed and the disposition of his property in its simpler form.”
Read: Nsubuga V Nsubuga High Court Civil Suit no. 1081/1988
Re Bird (1970) E.A 289

2. Ordinary /Unprivileged will

Capacity to make a will is provided for under Section 36 of the Succession Act. If the testator
lacks capacity or if any of the elements listed below are missing, then a will, will be invalid.

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a) In order to make a valid will, a testator must have a testamentary intention ie he must intend
the wishes to which he gives deliberate intention to take effect only at his death. He must have
animus testandi.
An animus testandi means in effect that;
i) A testator must understand the nature of the act in which he is engaged, ie the making of the
will
ii) A testator must be free of vitiating mental disorder and
ii) A testator must exercise his gamine free choice in the making of a will.

In Milnes v Foden (1890) 1 P &D 10, Sir James Hannen said;

“If there is proof, either from the paper itself or from clear evidence first that it was the
intention of the writer of a paper to convey the benefits by the instrument which would
be conveyed by it if considered as a will; that death was the event which was to give
effect to it, then whatever may be its form, it may be admitted to probate as
testamentary. It is not necessary that the testator should intend to perform or be aware
that he has performed a testamentary act”.
Thus in the Goods of Morgan (1866) LR IP and D 214 a settler executed 3 deeds of gifts under
which property was given to trustees for the benefit of the children and the deeds provided
that they were not to take effect before the settlers death. There deeds were held to amount to
settlers deeds and probate was granted accordingly.

Testamentary intention is ascertained from the language of the documents and extrinsic
evidence
In Re-Meynell, in this case, it is presumed that a document validly execute is a will.

In Ruth Nsubuga and others v Peter Nsubuga, the Plaintiff was a widow of the deceased by the
second marriage. She sought a declaration that she was a lawful executrix of the deceased’s
will. The defendants were children of the deceased born out of his first marriage who
challenged the validity of the will and counter claimed that as children of the testator, they
should be granted letters of administration for his estate. The defendants challenged the will
stating that the testator was too sick to have been fit to make a will. The issue was whether the
will was valid, whether the Plaintiffs were entitled to a grant of probate. It was held by Justice
Tsekooko that although the testator was confused as evidenced by the mistakes regarding the
years of birth, he was never mad. The testator was completely in his right mind. As such, the
signature in thewas the signature of the testator.
The Judge goes on to say that the defendants are not happy about the contents in the will but I
am not convinced by the defence evidence but any evidence that the will was not made
accordingly to the Law.” A will is valid and the testator opted out of custom therefore probate
would issue to the Plaintiffs and the counterclaim was dismissed.

The formalities provide some safeguard against forgeries undue influence and against hasty or
ill-considered dispositions. The emphasis is on the importance of the act in making the will. In
general, formalities can be justified by the need to provide reliable evidence of a person’s
testamentary intention.
Read: Re Colling [1972] 1 WLR 1440 on attestation
Brown V Skinrow (1902) P.C 3

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Administrator General v Teddy Bukirwa and Another, High Court Civil no. 205/1992
Section 3 of the Succession Act

Though society recognizes testamentary freedom, the law of succession to some extent
regulates the wishes of an individual. The law of succession serves three main interests which
may at times be found to be conflicting
1. It serves the wishes of individual
2. The well-being of the family
3. To some extent, the well-being of society

b) Secondly, a person must be over 18 years of age

A minor is defined under sec 2(0) of the Succession Act as any person who hasn’t attained the
age of 21 years. The Constitution of the Republic of Uganda however provides that the age of
majority is 18 years.

c) Thirdly, the person must observe the requirements as to form prescribed, by the succession
Act and these include:
i) If the will was induced by coersion or fraud, so that the free agency of the testator is taken
away. Such a will or the part thereof, which was induced by coersion or fraud is void ( Section
47 of Cap 162)
ii) If the will is not signed by the testator
iii) if the will is not witnessed by two witnesses

d) Making a will by a person of an unsound mind

Can such person make a will?
Sec 36 of the Succession Act provides that every person of a sound mind and not a minor may
by will dispose of his property. Sec 36(4) states that a person who is ordinarily insane may
make a will during an interval in which he or she is of sound mind. Otherwise, a person of
unsound mind cannot make a will.

Whether or not the person had capacity to make a will is determined from case to case. The
test of mental capacity was stated in Marquess of Winchester’s case (1598] 6 Co Rep 23(a)
that,
“It isn’t sufficient that the testator be of memory when he makes a will to answer
familiar and usual questions but he ought to have a disposing memory so that he is able
to make a disposition of his land with understanding and reason”.
This test was expanded by Cockburn CJ in Banks v Goodfellow [1870] L.R QB 49 at 567
where he said’
“As to the testator’s capacity, he must in the language of law, have a sound and
disposing mind and memory. In other words, he ought to be capable of making his will
with an understanding of the nature of business in which he is engaged, a recollection
of the property he means to dispose of, of the persons who are the objects of his bounty
and the manner in which it is to be distributed between them. It is not necessary that he
should view his will with the eye of a lawyer and comprehend its provisions in their
legal form. It is sufficient if he has such a mind and memory as will enable him to

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 FAMILY LAW II CLASS NOTES

understand the elements of which it is composed and the disposition of his property in
its simple forms.”
He provided these four tests, namely that;
i) A person is aware that he/she is making a will
ii) He/she has in mind his/her property.
iii) The beneficiaries
iv) The manner of distribution between them, are satisfied,
A person who is insane may never the less make a will in a lucid interval.
Read: In the Estate of Park[1954] p 89

Insanity following a will

To make a valid will, it is necessary for a person to have full mental capacity at a time when
the will is made so that if he becomes mentally ill after the will, the will remains effective.
Where the mental illness is such as to deprive him of animus testandi, he will also not have
animus revocable: ( intention to revoke) hence , mental illness following a will can make the
will irrevocable.
The rule in Parker v Felgate
The courts have developed a rule known as the rule in Parker v Felgate. Under this rule, if a
testator, when competent, has given instructions to another person, usually his lawyer to
prepare a will and the will is in fact prepared in accordance with those instructions, then the
will is valid, even though, when he actually executed it, the testator is no longer competent to
make a will.

This rule is objectionable in principle, for in principle, the requisite testamentary capacity
should accompany the execution of the will but it is a means of upholding wills in
circumstances in which the court favours them being saved.

In Parker v Felgate [1883] 8 P.D 171 a testatrix, when ill gave her solicitors instructions to
prepare a will leaving legacies to her father and brother. The testatrix went into a comma but
was brought out of a comma when the will was ready. She was told the document shown to her
was her will and she was asked whether she wanted someone to sign on her beheld. This was
done. It was established that at the time when the will was signed the testatrix didn’t remember
the instructions which she had given to her solicitor. And it was also established that if each
particular disposition had been put to her separately, she wouldn’t have been able to understand
it. It was also established that, however, and this was the basis of the decision that when the
will was executed, she knew that at some time, she had given instructions for a will to her
solicitor and she knew she was executing a will made in accordance with the instructions. On
this finding, the will was held to be valid.

Where, as in Parker v Felgate itself, the doctrine saves wills in qualified circumstances, the
scope of abuse is manifested. Accordingly, the court will only apply the rule where there is no
ground or suspicion. In particular, the court will inquire into the 3 circumstances very closely
where instructions are given to look at partiesor where the person drawing it takes some
significant benefit from it.
Read: Bettan Singh v Amischard [1948] AC 161
Chistian v Instpul [1954] I WLR 25 – making a will by a blind person.

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Suspicious circumstances
The principle in Parker v Felgate should be applied with the greatest caution and reserve
whenthe testator doesn’thimself give instructions to the solicitor who draws the will, but to a
lay intermediarieswho repeats them to a solicitor. The court before making any presumption in
favour of validity ought to be strictly satisfied that there is no ground for suspicion and that the
instructions given to the intermediary were un ambiguous and clearly understood, faithfully
reported by him and rightly apprehended by the solicitor.

In Re Ticehurst (deceased) 1973 Times March 6th

The testatrix had made a will leaving 3 houses which she owned, to their tenants. At the age of
82, she made a new will leaving the houses to her relatives. She didn’t herself see a solicitorbut
arrangedfor the will to be prepared by correspondence with a solicitor. Her own eye sight was
bad and she conducted the correspondence through a third party (amanuensis), ie, a person who
takes dictations. The latter was a wife to one of the nephews. There was evidence that the
deceased was lively and alert for her age and that the draft of the will had been read out to the
testatrix before its execution. However the suspicion of the court was aroused because the
nephew who was the husband of the amanuensis [literacy assistant] would have received one
of the houses under the new will.
On the facts, the suspicion was not dispelled and the new will was held to be invalid.
Where the beneficiary prepares a will, the court will itself require to be satisfied that the testator
knew and approved of its contents without necessarily the party opposing the will making any
allegation of impropriety on the part of the beneficiary. In effect, the burden of proof is placed
on the outset at the beneficiary. However a party opposing the will on the ground of undue
influence must himself prove it.
Note: to avoid suspicion, a lawyer making a will must not make a beneficiary a witness to the
will.

Effects of drink and drugs

There is no presumption that a habitual drunkard or a drug addict which has no testamentary
capacity at the time when the will is made. A person opposing the will may however prove
that at the time when the will was made, a testator was under the influence of drinks or drugs
and where this is done, the court will require evidence that not withstanding that fact, the
testator had the necessary capacity.

Blindness and Illiteracy

The usual professional practice when making a will for a blind or illiterate person is to read
over and explain the will to him prior to execution. The court may refuse probate where this
has not been done, or at least summary given to testator where it is shown that the testator was
blind or illiterate, the B.O.P is on the propounder to show that the testator understood he
contents of the will.

In Christian v Instiful 1954 I WLR 253, which was an appeal from the gold coast to the privy
council, a testator aged 86 had handed a document to someone who had been a solicitor’s clerk
asking him to have the contents typed out as a will. The clerk had read it out to the testator

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 FAMILY LAW II CLASS NOTES

whose eye sight had been so defective that he could not read the will. There were no suspicious
circumstances and the will was upheld.
This case is significant for 2 reasons.
1. The attitude of the court will depend very much on the content of the will. Where there are
no suspicious circumstances and the will is a type which the court would expect the testator to
make, it will strive to uphold the will as valid. Even where there is no positive proof that the
testator knew the contents.
2. The case was concerned with Order 49 of the Courts (Gold Coast) which read as follows,
“where the testator was blind or illiterate the court will not grant probate of the will or
administration of the will annexed unless the court is 1st satisfied by proof or what
appears on the face of the will that the will is read over to the deceased before execution
or that he had at that time, knowledge of its contents.”
In the course of his judgment Lord Porter declared thatto be a principle of English law.

Old age and Infirmity

These do not generally give grounds for suspicion on inquiry of themselves, but they are more
usually used to strength suggestions that the testator had no knowledge of the contents of the
will. Where however it is alleged that a testator didn’t know of the contents of a will because
of old age or infirmity, the courts inquire into the state of the testator’s memory.

CONTENTS OF A WILL
A will should contain the following information:
The will should have title
1. The testator’s / testatrixes’ full name and other personal details like date of birth, place of
birth , tribe, place of origin and names of his / her parents.
2. The postal address if any.
3. Residential address ie, name of village, town, sub county where one resides.
4. Name of husband /wife and the place and date of marriage, if one is separated, then date of
separation should also be included in the will.
5. Name and number of children born in marriage and outside marriage
NB: all children whether born in wedlock or outside wedlock are entitled to a testator’s estate.
Kajubi vKabali [1944] EACA 14
6. The full name of the heir or heiress.
7. Full description of the property one has, eg. Land, houses etc
8. Name of the people (beneficiaries) eg wife, children etc if any to whom one is leaving the
property and how such property is to be distributed after death.
9. Name of executor of the will, ie, the person or persons one is appointing to carry out
instructions and wishes in the will
10. Name of person or persons to be appointed as guardians of one’s young children ( Section
43 of the Succession Act)
11. Any burial wishes of the testator or testatrix
12. Some additional information e.g. place of employment, rank, salary and other benefits.
13. Particulars of commercial businesses in which the testator is involved. The number of
shares the person has in the business or any other interest.
Names of business associates and partners and the nature of business transactions involved in.

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14. Any insurance policies maintained by the testator or his employees for his benefit or the
family.
15. Name and address of banks where accounts are maintained indicating account number.
16. Names and addresses of places where the will be kept
17. List of Creditors and Debtors and amounts owed
18. The signature or thumb mark of the will maker
19. The date of execution
20. Names and addresses of witnesses to the will (at least 2 witnesses) and the date of signature.
Note: Beneficiaries to a will cannot be witnesses to a will
21. Any other relevant information like NSSF account

In Admin. General v Teddy Bukirwa and Esther Bukirwa HCC 208/1992, Justice CK
Byamugisha said,
“A will in the ordinary sense must be in writing and signed by the testator or someone
in his presence and at his direction. The signature must be made by the testator in the
presence of two witnesses or morewho must be present together at the same time and
should attest to the will in the presence of a testator…The witness must see the testator
affix his signature. The test to be applied is whether the person in whose presence the
signature is made could have seen the other signing had he wished to do so.”
It was further held that in all administration causes where a will has been executed, the best
evidence which the court ought to accept concerning its due execution will be from one of the
witness who attested to the will except in cases where the witnesses cannot be traced , the court
willlook for evidence from other people who were present and witnessed the execution.

Who can be an executor of a will?

Any of the following persons can be appointed as executors of a will.
1. Wife or husband
2. Children who are 18 years and above
3. Brother/sister/relative.
4. Responsible and trusted friend
5. Abank
6. A religious leader
7. The administrator general
8. Any other person the testator trusts and wishes to appoint as testator or testatrix.
9. Any beneficiary to a will

Duties of executors /administrators

These are provided for in Section 277 – 293 of the Succession Act
1. To perform a funeral of the deceased in a manner befitting his or her status at the time of his
or her death
2. To report the death to the office of the admin general or the chief administrator’s office in
the district
3. To apply to the court within two month from the burial of the deceased to have the will
proved and obtain probate
4. To collect with reasonable care the deceased property and debts due to him or her at the time
of death.

32 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

5. To keep the property safely pending distribution or otherwise

6. To pay all debts eg medical expenses, salaries due to laborers, workers etc and if funds are
still available, pay other debtors of deceased.
7. To prepare an inventory containing a true and full estimate of all the property, money
received and all debts owing or due to be paid.
8. Make an account of the estate within 6 months of the grant showing the assets which have
come in his or her hands and manner in which they have been applied or disposed of.
9. To maintain from the funds of the deceased, if available, the window, children and dependent
relatives including payment of school fees for children.
10. To distribute the property of the deceased in accordance with the wishes of the deceased as
stated in the will after complying with the above requirements.
11. A will can be kept in the bank, court registry or a trusted friend or religious leader. It is
only opened after the deceased has passed away. Section 337 of Cap 162

Conditions of an effective gift by will.

The following are necessary conditions that a gift by will may be effectual to confer a title to
proper given to the donee
1. The testator must be dead.
2. He must be a person who at the date of the will had a legal capacity to make a will.
3. At the time of making the will, the testator must have had the intention to make it so as to
take effect upon his death. The gift will be defeated if the testator’s mind wasn’t free and
unaffected by fear, fraud or undue influence or by many other matters which by law vitiate his
intention.
4. The will must be made in the form and manner required by law
5. The gift must not have been revoked or altered or if evoked must have been revived before
the death of the testator.
6. Probate of the will or letters of administration with the will annexed must be obtained.
7. The words used by the testator in making the gift must be sufficient to make his intention
capable of being ascertained.
8. The subject matter of the gift described by the testator must be ascertainable and capable
of being disposed of by the will of the testator or if not the gift must be validated under the
equitable doctrine of election.
9. The donee described by the testator must be ascertainable and capable by the law of taking
the benefit of the gift.
10. The gift so intended must be consistent with the law or must be capable of being infact
actuated in a manner consistent with the law.
11. The gift must be assented to or given effect to by the personal representatives of the testator.
12. All other conditions precedent imposed by the testator or by law must be performed.

Construction or interpretation of wills

The cardinal rule of English law as to the effect of a will is that the intention of the testator as
declared by him and apparent in the words of his will as effect given to it so are as nearly as
may be consistent to law. The application of the rule requires the court of construction to
consider these matters:
a) What is intention of the testator disclosed by the will?
b) How can effect be given to that intention?

33 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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Of the 1st principle, there are two branches

i) That the testator’s intention is to be sought in the words that he has used in the will give their
natural and grammatical meaning.
ii) That meaning can admit of modification to accord with areal intention shown by the will as
a whole.

The 1st duty of a court of construction is therefore to ascertain the language of the will, to read
the words used and ascertain the intention of the testator from them, unexpressed mental
intentions are irrelevant where the will is in writing, the only question is what is the meaning
of the words used in that writing.
The expressed intention is in all cases, taken as the actual intention, whatever the testator in
fact intended and a court can’t give effect to any infection which is not exposed or implied in
the language of the will.
Read – Perrin v Morgan [1943] ac 399
Rashida Begum v Admin General and Another (Civil App 16 ) [1951] EACA 102 at p.108-109

REVOCATION OF WILLS
A will by its very nature is revocable even though the testator declares it irrevocable. This was
held as such in Vyniors’s case [1909] 77 ER 597
Section 56 of Cap 162 provides for methods of revocation of a will

1. Revocation by marriage
Every will shall be revoked by the marriage of the maker, see Sec 56, Succession [Link] 162.
Sec 57 provides that no unprivileged will or codicil shall be revoked otherwise by marriage or
by another will or some writing declaring an intention to revoke the will and executed in a
manner in which any unprivileged will is in this Act required to be executed or by burning,
tearing or otherwise destroying the will by the testator or by some person in his presence orby
his direction with the intention to revoking it. So, a will can be revoked by tearing burning o
otherwise destroying it.
In Ferazio Rwabaganda v Donato Bahemurwabusha [1977] HCB 244, the Plaintiff was
supposed to be the deceased’s wife. One of the issues was whether they have been validly
married, the defendant contracted a valid marriage with the deceased therefore the issue was
that if she had married the deceased, whether this revoked the will. The defendant had been
married in 1964 and separated in 1965 but had no legal divorce. In 1967, the defendant married
the Plaintiff. The question was whether this was a valid marriage and if so, whether it revoked
the deceased’s will.
Did Section 56 apply? It was held that at the time of the deceased’s death, there was a valid
marriage between the deceased and the Plaintiff although the Plaintiff was married under
customary Law and although such marriage would have been invalid by virtue of Section 36
of the Marriage Act having been contracted before 1st October 1973 by of Section 10 (1) of the
Customary Marriages (Registration) Act be valid. Since the will exhibited in Court was made
in Aug. 1976, it stood revoked when the deceased later married the Plaintiff and there being no
subsequent will, the deceased will be regarded as having died intestate.

Note: In order for a will to be revoked by marriage, that union should be a valid marriage.

34 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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The exception to this rule is if the will is made specifically in contemplation of marriage and
that marriage takes place, then the will is not revoked by that marriage.

N.B Divorce doesn’t revoke a will read Re: Bird (Deceased) 1970 EA 289. In this case a testator
left all his property to the wife, Margret Bird. The will also provided for the devolution of the
estate if the wife did not survive the testator. The testator divorced his wife. Later she married
and became known as Margret Fox.
The testator had made one alteration in the will due to the death of his mother. But the clause
bequeathing all his property to my wife Margret Bird wasn’t altered. Margret Fox applied for
probate of the will. One of the issues was whether the divorce had revoked the will.
Held:1. Divorce doesn’t Ipso facto revoke the will
2. As the applicant was the person referred to in the will, she was entitled to the testator’s
property.
Justice Platt said, “I’m satisfied that Margret Fox is an identical person to Margret Bird who
was described by the testator as his wife and indeed she then was, as the testator didn’t alter
his will and as the divorce didn’t operate a voluntary revocation, Margret Fox is entitled under
clause 3 to the testator’s property and to be appointed his sole executrix.”

Read: Sallis V Jones [1953] All ER 872-Divorce does not revoke a will but it depends on the
circumstances of each case.

2. Revocation by Destruction
Two distinct elements are required
i) The act of destruction
ii) The intention to destroy
This was discussed in the case of Cheese v Love Joy [1877] 2 PD 251, In this case, the testator
drew some lines through some words in his will and at the back of the will he wrote; “All these
are revoked.” He then threw the will among a heap of waste paper in a corner in his sitting
room. His housemaid retrieved it and kept it until the testator’s death seven years later. It was
held that the will was not revoked since the testator had not done any act of destruction.

The principle behind this decision is that symbolic destruction may not be sufficient to amount
to a revocation.

In order to revoke a will, it may not be necessary to destroy the whole will. There must however
be destruction of so much of the will as to impair the whole will eg, if the signature of the
testator is burnt or torn off, or so obliterated that it cannot be made out or if the signatures of
the attesting witnesses are destroyed.

The act of destruction must be carried out by the testator himself or by another person in his
presence and by his direction. In the case of Gill V Gill [1909] PD 157, the testator’s will was
torn out by the testator’s presence but without the testator’s direction.
It was held that the will was not revoked.
Intention to revoke can be implied or inferred from the act of destruction. However, destruction
by accident or mistake does not amount to revocation eg, if the testator destroys a will,
believing that he is disposing of rubbish. Re Jones [1976] Ch. D 200

35 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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3. Revocation by another Will or Codicil

A privileged will or codicil may be revoked by the testator by any un privileged will or codicil.
Sec 59 of Cap. 162
Under Sec. 60 of the Succession Act, a revoked will can only be revived by executing another
will to be codicil showing an intention to revive the will. Where a testator has died a will can
be declared invalid if he didn’t execute another will after marrying another wife.

If the provisions of the later will or codicil are wholly inconsistent with those of the prior will,
the prior will is completely revoked. Re Estate of Bryan [1907] PD 125. If the provisions are
only partially inconsistent, those parts of the prior will not affected by the inconsistency remain
unrevoked. The issue to address in such cases is; which provisions did the testator intend to
take effect at his death. This is a question of construction. Section 59-97 of Cap 162.
Pervin v Morgan [1943] AC 399
Re Bailey [1951] ChD 407, [1951] VI All ER 391
According to Section 60, the wording of the will shall be such that the intentions of the testator
can be known there from. The meaning of any clause in a will shall be construed from the entire
document. The will is supposed to be read in context and therefore all its parts are to be
construed with reference to each other (Section 69).
According to Section 74, the intention of the testator must be effected as far as possible. In the
case of Pervin V Morgan, it was held that the fundamental rule in construing the language of
the will is by putting on the words used, which having regard to the terms of the will, the
testator intended. The question is not what the testator meant to do when he made the will, but
what the written words he uses mean in the particular case. In Re Bailey, Court held that it is
the function of a court of construction to improve upon or affect testamentary dispositions. The
function of the Court is to give effect to the dispositions actually made as appearing expressly
or by necessary implication from the language of the will applied to the surrounding
circumstances of the state.

4. A will can also be revoked by some writing declaring an intention to revoke the same.
A letter signed by a testator and duly attested which is addressed to a bank manager having
custody of the will instructing the manager to destroy her will was held to revoke the will. In
the case of Spracklan’s Estate [1938] 2 All ER 34, the will was revoked as soon as the letter
was duly executed.
Section 337 places appointment for custody of will of living persons.

5. A will can also be invalidated where he testator lacked the animus testandi, ie an intention
to make a will/testamentary capacity

6. Lack of capacity to make will can also invalidate a will. Eg where the testator was of an
unsound mind or mentally incapacitated by disease or age.
Note: Insanity following a will makes a will irrevocable

REVIVAL OF WILLS
Section 60 of Cap 162. A will can be revived either by re execution of the revoked will or by
a codicil duly executed with the intention of reviving the will.

36 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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Note: A will does not in itself confer rights upon the executor. The executor has to apply for
probate / letters of probate.

INTESTATE SUCCESSION
This is where a person dies without leaving a valid testamentary disposition or will.
A person can die wholly or partially intestate e.g if the deceased leaves a will which only
disposes off part of his property, he will be said to have died partially intestate and if he leaves
no will at all, he will be said to have died wholly intestate.
Read Section 4-18 on domicile.
Where no valid will exists, the law relating to intestate succession will apply. Alternatively, it
may apply where an existing will does not dispose of all the affairs of the deceased person.
The Law of intestate succession describes the following;
i. What constitutes an estate
ii. Who may be a beneficiary in intestacy or who has a right to inherit
iii. Who may administer the estate or manage it
iv. The distribution of the estate including the matrimonial home, that is, how the estate is to
be divided and how much each beneficiary is entitled to
v. Who may become a guardian to the minor orphans

Read Section 24 and 25 of Cap 162 on intestacy

The Succession Act provides for a mode of distribution to be followed, if a person dies without
making a will. The scheme varies from situation to situation depending on whether the
deceased has left a wife, husband, children and other dependant relatives.
Where a person dies leaving behind a wife, children, customary heir and other dependant
relatives, these people are entitled to the following share out of the estate.
1) The wife takes 15%
2) The children takes 75%
3) A customary heir takes 1%
4) Other dependant relatives take 9%

B. Where a person dies leaving behind a wife, heir and dependant relatives and no children,
the property should be distributed as follows:
1. Wife takes 50%
2. Other dependent relatives take 49%
3. Customary heir takes 1%

C. Where a person dies leaving behind a wife or dependant relative and the heir but no children,
the property should be distributed as follows;
1. He wife / dependent relative will take 99%
2. Customary heir takes 1%
NB. the children must have been accepted by the deceased during his or her life time . Ref.
Kajubi v Kabali case.
Sec. 2 of Cap 162 defines a customary heir.
Section 2 defines dependent relatives. Read: Lubangira V Akamba Bus Service [1979] HCB

37 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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Section 2 also defines a wife as one legally / validly married to the deceased. Christine Male V
Mary Namanda and Another, it was held that the Plaintiff was the widow of the deceased
because they were validly married. The first defendant had never been the wife of the deceased
although she had four children by him. The mere fact that somebody had children with a woman
does not entitle her to have a share in the estate of the deceased.

NB. 1) Where the legal wives are more than one, they share equally in the share given to them.
2) Where a wife / husband has been separated from the husband / wife as a member of the
household and dies intestate, she /he won’t be entitled to the share of the property of the
intestate unless she makes an application to court either before his death or within 6 month
after the death of the husband. She has to prove that she was away on a study leave of
executable leave of absence ( Sec 30 succession Act)

In Mboijana V Mboijana, it was held that although the defendant was the lawfully wedded wife
of the deceased, She had been separated from the deceased for twenty years and therefore she
could not have been substantially dependent on the deceased within the meaning of the
Succession Act. As regards her claim to the Letters of Administration as the greatest
beneficiary, it was held that she was disqualified by the provisions of Section 30 (1) of the Act
which stipulated that if separated from the deceased, as a member of the same household, the
wife would not be entitled to any interest in the estate.
Section 30 (2) allows an application to Court by or on behalf of such husband or wife seeking
a declaration that the provision of Sub section (1) should apply to such an applicant. The
application must be made at least 6 months after the death of the spouse.

NB: Section 27 was declared null and void by the Constitutional Court in the case of Law and
Advocacy for Women in Uganda V Attorney GeneralCONSTITUTIONAL PETITITONS
NOS. 13 /05 /& 05 /06. This is because Section 27 was unconstitutional in as far as it provided
for only male intestacy and not female intestacy.
There have been many arguments about this decision.
This decision therefore left the scheme of distribution under Section 27 in limbo. The scheme
is no longer binding in as far as an intestate’s deceased’s property is concerned. It is optional
for this scheme to be followed.

This decisions might have gross effects on decisions made under the current Succession Act.

Read: The Uganda Association for Women Lawyers V Attorney General

Lineal Descendants
There is no distinction in the Law of Succession between legitimate and illegitimate children
as was held in Kajubi V Kabali that there can be nothing repugnant either to morality or justice
in allowing an illegitimate child a share in the father’s estate.
Note: The definition of a child in the Act includes adopted children.
Section 52 of the Children Act provides that an adopted child is entitled to a share in the
intestate’s estate in the same manner in which the natural child of the adopter is entitled.

38 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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The scheme provided for under Section 27 can be departed from by family arrangements
sanctioned by court.

Residential holding(Section 26)

The residential holding or matrimonial home which was occupied by the deceased together
with the property there in are not included in the property to be distributed according to the
scheme above ( Section 29). This property should be held by the person to whom Letters of
Administration have been granted upon trust for the legal heir. But subject to the right of the
widow and children below 18 years if they are boys and 21 years if they are girls or stay in this
home until any of the following happen;

Termination of the right of occupancy may be by;

a) Events
1. In case of a widow, if she dies or remarries or ceases to occupy the house for a continuous
period of 6 months or consents to surrender the house and voluntarily surrenders it, then her
right to occupation ceases.
2. In case of a female child if she dies or reaches 21 years or marries earlier or if she ceases to
occupy the house for a continuous period of 6 month she loses control.
3. In case of a male child, if he dies or attains 18yeas or more or ceases to reside in the home
for 6 months and more.
4. By surrender in writing signed by the occupant (if an adult or endorsed by the court if the
occupant is a minor)

b) By Court
This happens when the occupants fail to fulfill the obligations imposed upon them as regards
the residential holding.
It is an offence to evict entitled persons from occupancy. The right is only in as long as one
will not remarry.

Before an estate can be lawfully administered by any one, letters of administration or grant of
probate must be obtained from Court.
Section 2 defines an administrator, an executor and also defines Probate.

Section 1 (1) of the 2nd Schedule provides for the people who have a right of occupancy of the
residential holding and they include, the widow, widower, children of the deceased who are of
minority age and are normally resident in such residential holding, the custodian of a minor.

Note: Section 26 on residential holding was also declared null and void by the Constitutional
Court in the Law and Advocacy for Women in Uganda V AG, cited above. This was mainly
because it permits the widower to remarry and still stay in the residential holding but requires
a widow to vacate the residential holding in case of remarriage.

The question now is; what happens to the decisions already made under the current Successsion
Act?

Application forLetters of Administration

39 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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The persons entitled to letters of admin are determined in accordance with the following orders
of priority, namely;
1. Children of the deceased
2. Surviving spouse
Read: Re Kibiegocase [1972] EA 179, in this case, the principle is that a widow is the most
appropriate person to obtain representation to her deceased husband’s estate. In the normal
course of events, she is the person who would rightly, properly and honestly safeguards the
estates for herself and her children.

In Lucy Monica Akuru v Michael alias Kirega (admin cause 10/1990) a widow applied for
letters of admin of the deceased estate worth 13.5 m
Another, sister and mother of the deceased lodged a caveat against grant of letters of
administration to the claimant. The defendants alleged that since the applicant was a young
lady, she was likely to remarry and that she had no love for the children left by the deceased
and she wasn’t likely to administer the estate for the best interest of those other children.
Held; Okello, J – under Sec 202 of the Succession Act as amended by decree 22 of 1972
where a deceased died intestate leaving a widow, letters of admin must be granted to the widow
unless court sees cause to disqualify her on ground of the personal qualification or when she
has no interest to administer the estate of the deceased. He said,
“Administration merely empowers the grantee to collect all the properties of the deceased and
to pay all his debts and distribute the balance of those who are entitled to a share of the estate
according to the law of succession. This in my view provides a good protection in the interest
of those entitled to a share against grantees of the letters of administration…”
All assertions against the widow were rejected and it was held that the applicant was a proper
person to administer the estate of her deceased husband.

3. Father or mother of deceased

4. Brothers and sisters of thewhole blood of the deceased
5. Grand children of the deceased.
If none of the above mentioned persons have survived the deceased, then letters for grant of
admin can be granted to;
1. Brothers and sisters of the half blood of this issue of a deceased brother or sister ofthe half
blood.
2. Grand parents
3. Uncles and aunts of the whole blood or the issue of any deceased uncle or aunt of the whole
blood.
4. Uncles and aunts of the whole blood or the issue of aunt or uncle of the half-blood who had
died during the life time of the deceased.
5. The admin general; under Administrator General’sAct, the admin general may apply for
Letters of admin of the estate of the deceased under the following circumstances;
1. Where the deceased has left a will under the names of the Administrator General as sole
executor.
2. Where deceased made a will devising or bequeathing his estate without appointing an
executor.
3. Where persons named as executors in the will have pre deceased the testator or renounced
probate of the will

40 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

4. Where letters of Probate or Administration have not been obtained within two months from
the death of testator.
5. Where a person died intestate.

Section 202 of the Succession Act provides that administration shall be granted to the person
entitled to the greatest proportion of the estate under the scheme of distribution as laid down I
Section 27. This Section applies subject to the provisions as laid down in Section 4 which states
that all debts shall be reported to the Admin. General who may apply for Letters of
Administration.
If Section 202 were to apply, the widow may not be the administrator in all cases of intestacy.
Never the less the courts have held that the widow is entitled to letters of administration since
in many instances, the intestate leaves children and in other instances, the children are minors
and therefore disqualified from applying for letters of administration as provided for under
Section 190.
Refer to Lucy Akuko V Kilga H.C. C. S no 10/1990 noted above.
In Katinti V Kalemera HCCS no 84 of 1991, it was held that it is trite law that the widow has
first priority to administer the estate of her intestate husband. If there is no widow, or for some
reason the widow cannot administer the estate, the court must grant letters of administration
according to rules of distribution of an intestate’s estate.
In this case, a respondent who was a sister to the deceased participated in a family meeting and
endorsed the appointment of the appellant as the person to take out the Letters of
Administration to the deceased’s estate. She could therefore not seek single handedly to
administer the estate.

Procedure for grant of letters of administration

1. Letter of no objection
This is in addition to the provisions laid down in Section 24 of the Succession Act and it must
be annexed to the petition. The Letter of no objection is issued by the Administrator General
after he has satisfied himself with the matters regarding the nature of the estates and size and
composition of the deceased’s family. Section 5 and 6 of the Administrator General’s Act Cap
157.
The letter authorizes one or more persons to commence proceedings for obtaining the Letters
of Administration.
Under Section 235 of the Succession Act, Jurisdiction to grant probate and letters of
administration is exercised by the High Court and the Magistrate’s Court depending on the
estimated value of the estate and in accordance with the provisions of the Administration of
Estate ( Small Estates) (Special Provisions) Act.
2. After Court has opened an Administration Cause or Probate File, Court issues a notice to the
general public about the application that it has received.
The notice calls upon the claimants and creditors of the estate to launch their claims in court
within a specific period.
If no objection is launched, within the specified period of time as indicated in the advertiser’s
notice, a grant of probate or letters of administration will be issued to the applicant.

3. Where there is objection to the application, the objector is supposed to lodge a caveat against
the application and such a caveat is lodged in court.

41 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

Under Section 253 of Cap 162, Court will proceed to hear the objection before issuing a grant.
The proceedings in cases of contention take the form of a regular suit in normal civil
proceedings. Section 265 of Cap [Link] the case is resolved in the Petitioner’s favour, then the
petitioner can proceed with the application.

Advantages of making a will

1. The wishes of the deceased are known and can be followed.
2. A widow and her children are saved from being chased out of their home by greedy relatives.
3. Property distributed in an even manner
4. Grabbing of property by greedy relatives is greatly reduced and in some cases eliminated.
5. All property and money due to the deceased can be collected as the will gives all particular
necessary directions to enable the administrators to follow it up.
6. Paternity of children won’t be disputed because they will be included in the will.

Where there is no will;

1. No one knows what the wishes of the deceased were and so the relatives and clan leaders
assume the responsibility to distribute the property as they wish.
2. The likelihood of the widow and children being thrown out of the property by greedy
relatives is likely high.
3. The family is bound to experience disputes arising out of distribution of property.
4. Some property may be stolen or snatched away by greedy relatives before anybody is
appointed by court to administer the property.
5. Some of the debts and property which are not known by the wife / relatives will be lost as
no one can trace it.
6. Paternity of children especially these out of wedlock may be disputed. Such children may
lose their share in property.

INTERMEDDLING
This is provided for under Sections 268 and 269 of the Succession Act.
Intermeddling is an offence.
-Panoyatis Catravas V Bhangi [1957] E.A 234.
-The Penal Code Provision on Intermeddling

REVOCATION OF GRANTS
The grant of Letters of Administration or Probate can be revoked for just cause as provided for
under Section 234 of the Succession Act on Contentious matters.

42 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

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 FAMILY LAW II CLASS NOTES

43 KABASEKE CHARLOTTE, ADVOCATE: LLM (MUK), DIP. LP (LDC), LLB (UCU)

Email: charlottekabaseke@[Link] Tel: +256 782 181 586